On April 13, Guam replied to CIR’s brief opposing Guam’s Supreme Court appeal. CIR and Dave Davis’ lead counsel at Gibson Dunn argued that the Ninth Circuit correctly found Guam’s plebiscite law was a race-based voting restriction in violation of the Fifteenth Amendment.

In response, Guam has argued that its planned plebiscite should not be considered a “vote” because it will not result in “direct legal or political consequences.” Instead, the brief consistently refers to the plebiscite as a “survey.” This argument was rejected by the Ninth Circuit Court of Appeals, which recognized that the terms of the plebiscite law require the government of Guam to send the results to Congress, the President, and the United Nations.

If accepted, Guam’s argument would have significant consequences for voting laws on the mainland. If “advisory” votes do not qualify as “votes” under the Fifteenth Amendment, then even some state primaries would not meet the definition of a “vote,” as delegates are not necessarily bound by the results of the primaries in their states. These and other “advisory” votes would be beyond the reach of the Fifteenth Amendment.

The Supreme Court has distributed the petition for certiorari and accompanying briefs for its Conference of May 1.